Explanatory
Memorandum

Senator Andrew Bartlett

Schedule 2 - Amendment providing for
the restoration of fair process under the Migration Act
1958

Schedules 1 and 2 seek to repeal the
introduction of a privative clause mechanism which restricts access
to Federal and High Court judicial review of administrative
decisions made under the Migration Act. It does so by
repealing certain provisions of the Administrative Decisions
(Judicial Review) Act 1977 and the Migration Act
1958 .

Schedule 3 - Amendments providing for
the duration of detention under the Migration Act
1958

Schedule 3 seeks to repeal the provisions
introduced by the Migration Amendment (Duration of Detention)
Act 2003 which prevents and limits courts from ordering the
release of somebody from immigration detention whilst an appeal
seeking their release is before the courts.

Schedule 4 - Amendments providing for
the return to procedural fairness under the Migration Act
1958

Schedule 4 seeks to repeal provisions of the
Migration Act 1958 inserted by the Migration Legislation
Amendment (Procedural Fairness) Act 2002 , which excluded the
common law rule of procedural fairness and attempted to make it
explicit that the procedures set down in the statute are all that
decision makers must comply with.

Schedule 5 - Amendments providing for
the provisions relating to character and conduct under the
Migration Act 1958

Schedule 5 seeks to repeal the Migration
Legislation Amendment (Strengthening of Provisions Relating to
Character and Conduct) Act 1998 which increased the Minister's
power to refuse or cancel visas on character grounds.
Experience has borne out concerns expressed at the time the
amending bill of 1998 was passed that there are insufficient
protections in place to prevent unjust or unfair outcomes

Schedule 6 - Amendments providing for
the end of mandatory detention under the Migration Act
1958

Schedule 6 seeks to eliminate the system of
mandatory migration detention which was introduced by the
Migration Reform Act 1992 and replace it with an alternative
system which is more humane, less expensive, meets
Australia’s obligations under international law and provides
a more effective mechanism for prompt and efficient administration
of Australian migration laws.